PRADIPSINH NARPATSINH SOLANKI,BHARUCH vs. ITO, WARD 2(1), BHARUCH

आयकर अपीलीय अिधकरण, सूरत �ायपीठ, सूरत IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI B.M. BIYANI, ACCOUNTANT MEMBER AND SHRI PARESH M. JOSHI, JUDICIAL MEMBER ITA No.251/SRT/2025 (Assessment Year- 2017-18) Pradipsinh Narpatsinh Income Tax Officer, Solanki, Ward-2(1), Shop No.3 & 4, Income Tax Office, Ganesh Garden Shopping Hari Kunj, Centre, Station Road, बनाम/ Nr. Gujarat Housing Bharuch Board, Vs. Ankleshwar Road, Valia, At & Post Valia, Dist. Bharuch (PAN: EPWPS2098M) (Revenue/Appellant) (Assessee/Respondent) Assessee by Sh. Hemant Suthar, CA Revenue by Shri Om Prakash Jha, Sr. DR Date of Hearing 21-07-2026 Date of Pronouncement 31-07-2026

ORDER Per Paresh M. Joshi, JM:

This is an Appeal filed by the Assessee u/s 253 of the Income tax Act 1961, [hereinafter referred to as the Act for the sake

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of brevity] as and by way of a second appeal before this Tribunal. The Assessee is aggrieved by the order bearing No:- ITBA/NFAC/S/250/2024-25/1073501098(1) dated 20.02.2025 passed by the Ld. CIT(A) u/s 250 of the Act in the first Appeal which is hereinafter referred as the “Impugned Order”. The relevant Assessment Year is 2017- 18 and the corresponding Previous Year Period is from 01.04.2016 to 31.03.2017.

2.1 That as & by way of an Assessment Order made u/s 144 of the Act, the total Income of the Assessee was computed and Assessed at Rs.82,84,395/-. The Assessee was as Non filer. That the aforesaid Assessment Order bears Number:- ITBA/AST/S/144/2019-20/1020206011 (1) & that the same is dated 11.11.2018 which is hereinafter referred to as the “Impugned Assessment Order”.

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2.2 That the assessee had not filed the ROI for the A.Y. 2017-18. The Dept. of Income Tax had information that the Assessee had made cash transaction during the period of demonetization from 9th November to 30th December 2016. That vide Notice dated 24.02.2017 the Assessee was informed that an amount of Rs.16,64,500/- was deposited by him & a response was solicited. However, the aforesaid Notice was Returned unserved by the postal authorities. That after due process the summons u/s 131(1A) of the Act dated 21.03.2017 was also issued to the Assessee by ADIT (Inv.), Bharuch.

2.3 The ADIT (Inv.) Bharuch also issued a commission u/s 131(1)(d) of the Act to ITO Ward-2(4) Bharuch for purpose of examination/verification & further inquiry of the cash transactions by the Assessee. Summons was also issued to the Assessee by the ADIT(INV) Bharuch to require him to attend the office of ITO Ward-2(4), Bharuch along with certain details & the necessary supporting evidences in response to the Cash Deposit during the Demonetization period. However, the

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Assessee neither attended nor submitted any submissions in response to summons so issued.

2.4 Notice u/s 142(1) dated 05.02.2018 calling upon the Assessee to file the ROI & to give Response was not complied with by the Assessee.

2.5 That the Ld. AO u/s 133(6) of the Act sought information from Bank of Baroda [BOB] in which the cash was Deposited. In response BOB provided to the Dept. of Income Tax the copy of the Bank Statement, KYC etc. related to the Assessee. That upon examination of statements of account Nos:- 0228020000084 and 02280500000304 maintained by the Assessee it was Revealed that there was a cash Deposit of old Notes (legal tender) amounting to Rs.16,64,500/- during the period of Demonetization i.e. 09.11.2016 to 30.12.2016 Rs.23,08,680/- was cash deposit during the entire year excluding the Demonetization period & other credit entries by way of clearing & transfer of Rs.32,11,215/-. It was also Revealed that during the period of Demonetization the amount of Rs.16,64,500/- was not deposited at a stretch but was found to have been deposited in a Piece Meal Manner. The Assessee had filed ROI for A.Y. 2015-16. No information regarding cash on hand on the part of the Assessee as on 08.11.2016 was available with the Dept., Nor the Assessee has provided the same. Nothing was known to the Dept. about the Assessee’s Nature of business as No ITR was on the Record & No Response too was on the Record. That a Notice u/s 142(1) dated 04.06.2019 was again issued to the Assessee by email & the speed post on the same day. The Assessee was Non Responsive even to Notice u/s 272A(1)(d) dated 21.09.2019 for 27.09.2019 the above Notice was sent by email & speed post too. SOP [Standard Operating Procedure] was subsequently followed as per Para 6 of the “Impugned Assessment Order”. The Ld. AO in Para 8 of the “Impugned Assessment Order” prepared the following chart:- “ Name Account no. Cash Cash Other Total of deposited deposite credits by unexplain Bank during the d other way of ed demonetizat than transfer amount in ion period demoneti and Rs. zation clearing in period Rs. during the entire FY 2016-17 in Rs. Bank 228020000844 1664500 1458980 3209647 63,33,127 of Barod a 228050000304 800000 758100 212915 17,71,015 Bank of Barod a - 88653 1,80,253 Bank 228060000174 91600 1 of Barod a TOTAL 82,84,395 The Ld. AO in the “Impugned Assessment Order” then quantified Rs.82,84,395/- as unexplained income of the Assessee exigible to tax.

2.6 That the Assessee being aggrieved by the aforesaid “Impugned Assessment-Order” prefers the first-appeal u/s 246A of the Act before the Ld. CIT(A) who by “Impugned Order” has dismissed the first-appeal of the Assessee on the grounds of reasons specified therein. The Core grounds & and the reasons are as under:- “This appeal, on Form 35 was filed by the appellant on 20- Dec-2022 against the Order u/s. 144 dated 11-Nov-2019 of

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the Income-tax Act, 1961 (hereinafter referred to as the Act) of Circle GUJ-W-(304) (97) the Assessing Officer (hereinafter referred to as the AO) for A.Y 2017-18. The appeal was migrated to the National Faceless Appeals Centre (NFAC) in terms of Notification no.76/2020 dated 25.09.2020 issued from CBDT, New Delhi. Notice for hearing, each bearing unique DIN number, was issued on 07/08/2023, 09/08/2023, 13/08/2024, 11/09/2024 and 13/01/2025. Reference was made to the AO through ITBA for verification of the appeal, however no response has been received till date. In the absence of an adverse report from the AO, the contents of the appeal are taken in order and proceeded with on merits.” 3. Late filing of appeal: It is noticed from Form no.35 that the appeal has been filed belatedly beyond the stipulated time by the appellant. The following reasons have been furnished for the delay in filing appeal: Period No. of Days Reasons 12.12.2019 till 103 Due to non- 23.03.2020 availability of

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orders 23-03-2020 till 799 Covid Pandemic 31.05.2022 01.06.2022 till 203 Lack of 20.12.2022 coordination 4. Decision on Condonation of delay: 4.1 On perusal of Form No. 35, it is seen that the date of service of order u/s. 144 dated 11.11.2019 is on 11.11.2019. Accordingly, considering a limit of 30 days, an appeal needed to be filed by 10.12.2019, however same has been filed on 20.12.2022 which is belated by 1106 days and that too with any plausible explanation.

4.2 The appeal as per the Appeal Memo was filed on 20.12.2022. The appellant has filed letter for condonation of delay in which it is stated that the appeal has been filed late due to non-availability of orders, covid pandemic and lack of coordination.

4.3 The following is worth notice in this case- (1) The order appealed against is dated 11.11.2019 and date of service is stated to be on 11.11.2019 and appeal in Form

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No. 35 has been filed on 20.12.2022 ie. delay by 1106 days by giving vague reasons for filing appeal late.

(ii) Further, the delay in filing appeal has been attributed to non-availability of orders, covid pandemic and lack of coordination. Firstly the appellant has stated that the delay of 103 days was due to the fact that the e-mail id and telephone numbers registered on the Income Tax portal did not belong to the appellant. Here it is important to state that it is the duty of the appellant to get his e-mail id and telephone numbers updated with the department. The appellant could contact the A.O to update his email-id etc. The appellant has not provided any evidences in this regard.

(ii) The 2nd delay of 799 days was on account of covid pandemic and the appellant has relied on the judgement of the Hon'ble Supreme court wherein the period of limitation has been extended.

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(iii) The third phase of the delay of 203 days is stated as due to lack of coordination. In this regard, it's stated by the appellant that – "on receipt of notice for recovery of demand on 01.03.2022 it was realized by the appellant that various orders have been passed resulting into the demand. Thus, the appellant approached the CAs and due to lack of coordination, the further process of filing of appeal etc. could not be pushed.” However, the appellant has not submitted any other evidences to prove his point. Thus, from the above it is noted that barring the covid pandemic period, there is substantial delay of 306 days i.e. nearly one year in filing of appeal which is inordinate delay.

4.4 As per the provisions of sub-section (2) of Sec.249 of the Act, the appeal should be filed/presented within 30 days of the date of service of the demand notice along with order appealed against on the appellant concerned. Further, as per sub-section (3) of sec.249 of the Act, the CIT(A) has been

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empowered to admit an appeal which has been filed after the expiry of the stipulated period of 30 days, but subject to recording his satisfaction that the assessee has "sufficient cause" for not filing the appeal within the said period. As such, the CIT(A) is vested with the power of condonation of delay in filing the appeal. The relevant portion of the statute is reproduced below: "(3) The Commissioner (Appeals) may admit an appeal after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting it within that period."

4.5 However, the appellant should file an application for condonation of delay at the time of filing the appeal in Form no. 35, along with the details/reasons in order to demonstrate existence of "sufficient cause" for such delay in filing the appeal. While doing so, the appellant should explain reasons for each day delay in filing the appeal. Procedural rules are essential in the orderly, efficient and

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speedy administration of justice and cannot be characterized as mere technicalities that may be ignored at will to suit the convenience of a party. The determination of the timeliness of the petition is important. It ought to be within the period prescribed by law as a jurisdictional requirement.

4.6 While deciding the case on the basis of delay of filing the appeal, the adjudicating authority should keep in mind two important factors i.e., 1. Whether it is a minor delay of a few days or inordinate delay running into several months/years. 2. Whether the appellant has established its bona fides with regard to existence of sufficient cause which prevented from filing the appeal within the due date prescribed as per the provisions of the law.

In the instant case, due to huge delay in filing the appeal, the appellant's case falls under the category of inordinate delay, and, therefore, it is not possible to approach the case

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from the liberal viewpoint. Accordingly, the delay in filing the appeal should be viewed applying strict rules of limitation law The Courts have held that "The inordinate delay cannot be condoned simply because the appellant's case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In granting the indulgence and condoning the delay, it must be proved beyond the shadow of doubt that the appellant was diligent and was not guilty of negligence, whatsoever. The "sufficient cause" within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. The cause for the delay in filing the appeal, which by due care and attention, could have been avoided, cannot be a sufficient cause within the meaning of the limitation provision".

4.7 As seen from this factual position, the appellant has furnished misleading reasons for delay in filing this appeal and hence it would appear that there was no genuine

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reason for delay in filing appeal, but for mere negligence and nonchalant attitude on the part of the appellant. Also, the appellant has not explained each day's delay in filing the appeal. In this connection, it is also important to note that as per the settled position of law, adjudication of condonation of delay is a matter of discretion of the adjudicating authority/court and not of right of the appellant.

4.8 Under the circumstances, keeping in view of the fact that there has been an inordinate delay, I am of the considered opinion that the appellant has failed to prove its bonafides to establish with evidence that it was prevented by unavoidable circumstances from filing the appeal or there was "sufficient cause" for not filing the appeal in time.

4.10 In view of the above facts and circumstances wherein the appellant has neither responded to the original notice seeking reasons for delay nor the subsequent reminders regarding the delay, the appeal of the appellant is barred by

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limitation and not maintainable as per the provisions of section 249(2) r.w.s 249(3) of the Act and is being dismissed as non-maintainable without any adjudication on merits or any other aspect of the appeal.

4.11 It is well settled legal position that until and unless delay in filing the appeal is condoned by the CIT(A), the said appeal cannot be admitted for adjudication on merits of the case. Accordingly, once the appeal is not admitted on account of delay in filing the appeal, the question of adjudicating or deciding the appeal on merits of the case does not arise.

4.12 In this regard, it is pertinent to note that the Hon'ble ITAT, Agra Bench in the case of Sri Rajeev Agarwal vs. DCIT in IT(SS) A No.02/Agra/2011 for Block Period 01.04.1989 to 16.02.2000 dated 23.03.2012, has categorically explained the proposition of law that the CIT(A), after having recorded the finding that the appeal is barred by limitation, cannot

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decide the case on merits as such course of action is not permissible under law. The relevant portion of the decision is reproduced below for ready reference: “5. We have considered the rival submissions and the material on record. As per details given in form No.35 of appeal filed before the Id. CIT(A), the impugned penalty order was served upon the assessee on 27.02.2006 and the appeal was preferred before the ld. CIT(A) on or after 04.04.2006. As such, the Id. CIT(A) correctly noted in the appellate order that the appeal is time barred because the appeal is not filed within prescribed period of 30 days. According to section 249(3), the ld. CIT(A) could admit the appeal after the expiry of such period if he was satisfied that the assessee had sufficient cause for not presenting the appeal within that period. The ld CIT(A), however, noted in the appellate order that no request is made on record for condonation of delay in filing the appeal beyond the period of limitation. As such, the appeal of

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the assessee was clearly time barred and the ld. CIT(A) rightly held the appeal of the assessee as non- maintainable. The assessee has not challenged the finding of the ld. CIT(A) in the grounds of appeal filed before the Tribunal. No material or evidence is filed to explain the delay in filing the appeal and as such, the request of the ld. counsel for the assessee for remanding the matter to the file of ld. CIT(A) in this regard cannot not be allowed. Since the appeal of the assessee was time barred before the ld. CIT(A) and there is no challenge to the said finding before us, we are of the view that the appeal of the assessee is not maintainable and is liable to be dismissed on this ground alone. Accordingly, the appeal of the assessee is dismissed. However, we may note that the Id.CIT(A) exceeded his jurisdiction in deciding the appeal on merit also after recording the above findings of appeal being time barred. Such a course adopted by the Id.CIT(A) is not permissible under law and as such, the

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Id.CIT(A) should be careful in taking up such a matter. With these observations, the appeal of the assessee is dismissed. 5. In the result, the current appeal fails on account of non-condonation of inordinate delay and is, therefore, dismissed unadmitted as non-maintainable.” 2.7 That the Assessee being aggrieved by the “Impugned Order” has preferred the Instant Second Appeal before this Tribunal & has raised the following grounds of Appeal in the form No:-36 before us which are as under:- “1. The Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi has erred in facts and in law in dismissing the appeal treating the same as unadmitted as non-maintainable on account of non-condonation of inordinate delay The Ld. GIT(A) ought to have condoned the delay and adjudicated the appeal on merits Since the order is passed in violation of principles of natural justice, the same is prayed to be set aside. 2. Without prejudice to the above, the Ld. CIT(A), NIFAC has erred in facts and in law in not adjudicating the following grounds of appeal raised before him on merits. though the submission made on merits also: i) The Ld. A.O. has erred in law and in facts in completing the assessment under section 144 of the I.T. Act without affording the appellant the opportunity of being heard. The assessment order being bad in law is prayed to be set aside.

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ii) The Ld. AO has erred in law and in facts in making an addition of Rs. 82,84,395/- being cash deposited/amount transferred in various bank accounts treating the same as undisclosed and unexplained income under section 69A. The impugned addition of Rs. 82,84,395/-, being made without giving sufficient opportunity of being heard to the appellant and without considering the applicable facts of the case is, therefore, prayed to be deleted. iii) The Ld. A.O. has further erred in law and in facts in initiating the penalty under section 271AAC(1) in respect of the above addition, The same may please be directed to be dropped. The order of the Ld. CIT(A) being bad in law and in fact is prayed to be set aside. 3. Appellant craves liberty to add, alter, amend substitute or withdraw any of the grounds of appeal hereinabove contained.”

Record of Hearing 3. 3.1 The hearing in the matter took place before this Tribunal on 20.07.2026 when the Ld. AR appearing for & on behalf of the Assessee interalia contended that the “Impugned Order” is bad in law, illegal & not proper. It is passed in the violation of the principles of Natural Justice. It, therefore, deserves to be set aside.

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3.2 The Ld. AR submitted that “Impugned Order” has infact sustained the “Impugned Assessment Order” as the first Appeal was time barred. The Ld. AR stated that the Assessee undertakes to Appear before the Ld. AO if this Tribunal Set Aside the “Impugned Order” which was on ground of delayed filing of the first Appeal & was not on merits. It was submitted that even the “Impugned Assessment Order” is not on merits. Per contra the Ld. DR initially supported the Orders of both the lower authorities. However, a little later the Ld. DR left the Issue to the Bench to take an appropriate call basis it's wisdom in so far the Remand of the case to Ld. AO is concerned. Hearing was then over & was closed.

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4.2 We have carefully perused the records of the case and have heard the submissions.

4.3 We, after carefully perusing the Records of the case and after hearing & further after examining the Rival contentions of the Ld. AR and the Ld. DR canvassed before us are of the considered view that the “Impugned Order” & “Impugned Assessment Order” are not on Merits. We are also simultaneously of the View that the Assessee was Non-Compliant throughout before the lower Authorities. However, in view of the undertaking given by Ld. AR of the Assessee that the Assessee would now participate in Fresh Proceeding before Ld. AO without any Demur, we set aside the “Impugned order” & condone the delay before the Ld. CIT(A) & direct the Assessee to participate before the Ld. AO subject to payment of cost of Rs.10,000/- to be paid to Income Tax Department by a challan under the category “Others” & to show necessary proof in this regard to the Ld. AO before he takes up the Denovo proceedings afresh. We desire meritorious disposal by the both lower authorities as the Income is required to be computed & Assessed on real time basis law.

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The Assessee is Strictly directed to cooperate with the Dept. & he is further directed not to seek any Adjournment on any flimsy grounds whatsoever. We observe that the conduct of the Assessee is not above board in the instant appeal. We direct him to be vigilant & help in the speedy disposal of tax dispute so that our Nation ushers in to a new dawn.

4.4 In the premises drawn up by us we Set Aside the “Impugned Order” as and by way of Remand back to the file of the Ld. AO with above directions including on cost.

Order 5. 5.1 In the Result, “Impugned Order” is Set Aside back to the file of the Ld. AO as & by way of Remand On Denovo basis with directions as aforesaid.

5.2 The appeal of the Assessee is allowed for statistical purpose. Order pronounced as per Rule 34 of I.T.A.T. Rules 1963 on 31.07.2026 by placing on Notice Board.

Sd/- Sd/- (B.M. BIYANI) (PARESH M. JOSHI) ACCOUNTANT MEMBER JUDICIAL MEMBER िदनांक /Dated : 31.07.2026 * Kishore, Sr. P.S. Copy of the Order forwarded to:

By Order,

Sr. Private Secretary, I.T.A.T., Surat

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